SAEBDUR RAHMAN, J.-The appellants Bhai Khan, aged 25 ears and Muhammad Ashraf, aged 24 years Caste Kharal residents' of Cbak No. 429/G. B., Tehsil Jaranwala, District Faisalabad, were tried together with another, namely, Sher Muhammad for causing the death of their co-villager, Taja deceased. The learned Sessions Judge, Faisalabad, by his judgment, dated 19th July, 1976 convicted the appellants under section 302 read with section 34 of the Pakistan Penal Code and sentenced both of them to death. They were also directed to pay fines of Rs. 1,000 each or in default to undergo six months' R. I. Each. Sher Muhammad was, however, acquitted.
The two appellants have preferred a joint appeal against their con--viction and sentence while the learned Sessions Judge has made a reference for the confirmation of the. Sentences of death imposed upon them. This judgment will dispose of both the appeal and the reference.
2. The case of the prosecution was that 10/12 years prior to the occurrence one Mir Muhammad uncle of Muhammad Ashraf and 'Phupha' of Bhai Khan appellants was murdered by Taja deceased and four others who were challaned but acquitted by the Sessions Court. The motive for the commission of the crime was stated to be a desire on the part of the appellants to avenge the murder of their uncle.
On 21st March, 1974 at about 5 p. m. Taja deceased and his wife's brother, Amir Ali (P. W. 8) both residents of Chak No. 42/G. B. Were on their way to Chowk Adil within the area of an adjoining Chak No. 4241 G.. B. For catching a bus for Tandlianwala Shahrah (P. W. 11), their co---villager who too had to catch the bus, was also closely following them. When they were still a Furlong from the chowk on a kacha road, Bhai Khan and Muhammad Ashraf, both armed with 12 bore pistols, and Sher Muhammad armed with a scythe, surprised them from an ambush in a nearby dry water channel. Sher Muhammad raised a lalkara exhort--ing his companion to avenge the murder of Mir Muhammad. Muhammad Ashraf came forward and fired at Taja from a distance of 4/5 karams hitting him on his left thigh in the front. He fell down on the ground. Bhai Khan then came closer and fired at him placing the pistol on his temple. Shahadat Khan (P. W. 10) and one Nausher (given up by the prosecution as being unnecessary) who had a little while earlier alighted from a bus at Chowk Adil also witnessed the occurrence Taja deceased died on the spot. Amir Ali (P. W. 8) shortly thereafter left by a bus for Police Station Tandlianwala situated at a distance of five miles and lodged the F. I. R. Exh. P. G. At 6 p. m. The same evening which was recorded by A. S.-I. Niaz Ahmad (P. W. 13).
3. A. S.-I. Niaz Ahmad (P. W. 13) proceeded to the place of occurrence and collected from the spot two - 12 bore empty catridges P. 4 and P. 5 and took them into possession vide memo. Exh. P. D. S.-1.
Saeed Akbar (P. W. 12) also partly investigated the case. On 6th April, 1974 while he was present in Chowk Adil, Bhai Khan, Muhammad- Ashraf and Sher-Muhammad voluntarily appeared before him. Bhai Khan produced a '12 bore pistol P. 1 and a live cartridge P. 2 while Muhammad Ashraf produced a - 12 bore pistol P. 3 which were taken into possession vide memos. Exh. P. A./2 and Exh.
P. B., respectively.
4. The post-mortem examination of Taja was conducted on 1st April, 1974 at 1 p. m. By Dr. Muhammad Riaz Ali (P. W. 1). He found a lacerated wound 1" x 1" going deep into the left temporal region. The area around the wound was burnt. The skull bones were fractured into numerous ,pieces and the brain and meninges were badly injured. Seven cardboard wads and five pellets were extracted from inside the skull. He also found six lacerated wounds each 1/3" x 1/3" going deep over an area of 3" x 2--" on front of left thigh with two corresponding lacerated wounds of exit. The femur was fractured. Two pellets and three lead pieces were extracted from the wound. The cause of death was shock and haemorrhage due to the multiple injuries, which were sufficient in the ordinary course of nature cause death. In his opinion the death had occurred immediately after the receipt of injuries and the time lag between death and post-mortem was 20 hours.
5. The appellants pleaded not guilty to the charge against them. They alleged that they were falsely implicated due to enmity. They did not lead any evidence in defence.
6. The case of the prosecution rests mainly upon the testimony of the eye-witnesses, the medical evidence and the motive. The evidence of recovery of incriminating articles was disbelieved by the learned trial Court 'and in our opinion rightly so. The eye-witness account was provided by Amir Ali (P. W. 8). Shahadat Khan (P. W. 10) and Shahrah (P. W. 11). Nausher also named in the F. I. R. As the prosecution as unnecessary gave up eye-witness. The eye-witnesses have fully supported the prosecution case. Amir Ali (P. W. 8) stated that on the day of occurrence at about 5 p. m. He and Taja deceased were on their way to Chowk Adil to board a bus for Tandlianwala. Shahrah (P. W. 11) was following them at a short distance. When they were still about a furlong from the chowk, the appellants together with Sher Muhammad emerged from an adjoining dry water channel and surprised them. . Sher Muhammad raised a lalkara. Muhammad Ashraf came forward and fired a shot hitting Taja on his left thigh. He fell down on the ground. Then Bhai Khan came close to the deceased and fired at him placing the pistol on his temple. Shahrah (P. W. 11) also deposed to the same effect. Shahadat Khan (P. W. 10) resided in adjoining Chak No. 424/G. B. And was Lamberdar of the village. He was running two shops at Tandlianwala. He used to go daily at 9/10 in the morning to Tandlianwala by taking a bus from Chowk Adil and return to the village after closing the shops at 3/4 p. m. At the time of occurrence, as usual, he had just alighted from the bus at Chowk Adil on his way back from Tandlianwala. He has given a similar account of the occurrence.
7. The learned counsel for the appellants contended that Amir Ali (P. W. 8) was an interested person and a chance witness and for that reason his testimony ought not to be relied upon for convicting the appellants. This contention is without merit merely because a witness is related to the victim he cannot be dubbed as an interested person. It is well-settled that relationship per se is no ground to disbelieve a witness if his testimony is otherwise trustworthy. As already mentioned Amir Ali (P. W.
8) has fully supported the prosecution case. He was not connected in any manner with the previous murder of Mir Muhammad and there was nothing on the record to show that he was inimically disposed towards the appellants. He had thus no motive to falsely implicate them on a charge of murder. He has given cogent reasons for his presence at the scene of occurrence. He had to collect from one Ahmad Khichi of Gogera Bungalow near Tandlianwala a part of the price of bullock which his late father had sold. He had visted Ahmad Kbichi for this purpose on a previous occasion as well. But this time he took song 'raja deceased as he was better known to Ahmad Khichi. In order o reach Gogera Bungalow he bad to walk up to Chowk Adil to get a bus or Tandlianwala. At the relevant time he was going on a public path leading to Chowk Adil. It cannot, therefore, be said that his presence at the spot was not natural. The inde--pendent witnesses and the medical evidence also supported his evidence. .
8. It was next contended that Shahadat Khan (P. W. 10) and Shabrah (P. W. 11) were also chance witnesses. The contention has no substance. Shahadat Khan (P. W. 10) was residing in Chak No. 424/G. B. At a. Distance of half a mile from Chowk Adil. As stated earlier he used to go to Tandlianwala to attend to his business daily in the morning by a bus from Chowk Adil. The place of occurrence fell on his way. The B occurrence took place at a time when he would ordinarily be returning to his home. His presence, therefore, at the spot at the relevant time could not be considered as unusual. At the trial the defence suggested to him that he was permanent resident of Tandlianwala. This was denied by him and the defence led no evidence to substantiate its sugges--tion. It may be mentioned that he was the Lamberdar of his village and Tandlianwala was only 5 miles away from the village. The fact that the licence for `Arhat' was in the name of his son and not in his own name is of no significance for this did not prevent him from attending to the business. He might very well have used this course to protect his office as Lamberdar. He was independent witness and had no reason to falsely implicate the appellants on a capital charge.
The presence of Shabrah (P. W. 11) at the place of occurrence also does not appear to be unnatural.
He was on his way to Tandlianwala to make purchases. The only inconsistency pointed out by the defence was that before the Committing Magistrate he had stated that Rawan was sown in Killa No.3 of Square No.56 whereas at the trial he mentioned Killa No. 5 of Square No. 57 in that context. A mere wrong description of the field cannot be said to be a material contradiction affecting his credibility. He too was an independent witness and there was nothing on the record to show that he had any motive to become a false witness against the appellants.
All the three eye-witnesses remained consistent in their statements before the Committing Magistrate and at the trial and could not be shaken by the defence in cross-examination except for minor discrepancie of immaterial character.
It was contended on behalf of the appellants that Mir Muhammad's murder was far too remote to provide motive for the present murder. In this context it was pointed out that during all this period Taja deceased had remained in the village and no attempt was made on his life. In the presence of sons and brothers of Mir Muhammad it was not open to reason that the appellants who were, only his nephews would take it upon themselves to avenge his murder. We find no merit in this contention. Not infrequently mere lapse of time does not eradicate the desire, to take revenge.
People do wait for years to get a proper opportunity. It cannot, therefore, be said that the appellants did not have a motive to commit the crime.
11. It was lastly contended that as the evidence of the eye--witnesses was disbelieved qua Sher Muhammad the acquitted accused. It was unsafe to rely upon the same against the appellants.
But find that his case was distinguishable for the reason that apart from a proverbial lalkara no part in the commission of the crime was assigned to him.
12. In these circumstances we are satisfied that the appellants have rightly been convicted and sentenced for the murder of Taja deceased It was a murder in cold blood. A defenceless person was shot dead on a public path in broad day-light. We, therefore, confirm the sentences, of death imposed upon the appellants.
13. The appeal and the reference are disposed of accordingly.